We've seen, since the forcible capture of power in Gaza by the terrorist organization Hamas three weeks ago, a series of arguments being made defending the legality of and offering justifications for the Hamas putsch.
Now, on its face, that argument would seem to be execrable to Progressives, given that we are wedded to the idea of the rule of law and constitutional government. But since these arguments keep on cropping up, it's time to examine them more closely.
The events prior to the putsch and Hamas' collective mind are outlined in this piece by the International Institute for Strategic Studies:
The June escalation was triggered by Hamas’s conviction that the PA’s Presidential Guard, which US Security Coordinator Lieutenant General Keith Dayton had helped build up to 3,500 men since August 2006, was being positioned to take control of Gaza. The timing was significant. Abbas, Haniyeh and Hamas Politburo chief Khaled Meshaal, normally based in Damascus, had signed a Saudi-brokered power-sharing deal on 9 February 2007, and formed a national unity government in mid-March. In response, the build-up of the Presidential Guard was accelerated. The US had arranged the transfer of 2,000 rifles and ammunition from Egypt in late December 2006, and in late April the Israeli government transferred another 375; the US committed $59 million for training and non-lethal equipment, and covertly persuaded Arab allies to fund the purchase of further weapons. Jordan and Egypt hosted at least two battalions for training, one of which was deployed into Gaza as clashes resumed in mid-May. With half its parliamentary bloc and its cabinet ministers in the West Bank in Israeli custody since the abduction of Israeli Corporal Gilad Shalit by Palestinian militants on 28 June 2006, Hamas concluded that its remaining government base in Gaza was in danger and launched what in effect was a pre-emptive coup.
The Palestinian security chief Muhammed Dahlan said, following the putsch, that he had expected it.
Former Fatah security chief Muhammed Dahlan said Wednesday that he was not surprised by Hamas's "coup" in the Gaza Strip and that he had warned various parties about the Islamic movement's plans.
He also accused Iran and Qatar of providing Hamas with hundreds of millions of dollars.
Dahlan, who is a Fatah member of the Palestinian Legislative Council, has been accused by Hamas of conspiring with the US and Israel to remove the Hamas-led Palestinian Authority unity government from power. He is also under attack from some Fatah leaders and activists who hold him responsible for the Hamas takeover of the Gaza Strip.
The case being made by those who view Hamas with friendlier eyes is this: they were the elected government of the Palestinian Authority, and therefore should have full command of the functions of government, including especially the security services. When this was refused to them, they putsched, supposedly in self-defense, thereby restoring their lawful control. Ergo, the putsch, and by extension the casualties attendant upon it, are justified. The implication from this is, of course, that there is nothing punishable here, and by extension, that Hamas must be returned to governmental power and receive aid from the West.
There are three questions relevant to this discussion: one, did Hamas while still in government have a claim to control the security forces, two, was the putsch legal, three, was it justified?
The governing framework under which Hamas operates, or used to operate, is the Palestinian Basic Law, the constitution of the Palestinian Authority. As constitutions go, it's certainly not a perfect document; its defects include, for example, a compulsory religious oath for members of the legislature (Art. 49), a conditional freedom of exercise, subject to amending laws (Art. 18), and an equally conditional freedom of expression, again subject to legislative interpretation (Art. 19).
The Basic Law sets up a system of separation of powers roughly comparable to that of France, with a strong elected President (Title 3), a legislature charged with devising day-to-day policy (Title 4), a responsible cabinet led by a Prime Minister as a part of the executive branch (Title 5), and an independent judiciary that has the power of constitutional review (Title 6).
However, the Basic Law also very clearly spells out a separation of powers between the Presidency, the cabinet (called a Council of Ministers) and the Prime Minister within the executive branch.
Article (63)
The Council of Ministers (Government) is the highest executive and administrative tool, which shoulders the responsibility of implementing the program that has been approved by the Legislative branch. Except the executive jurisdictions of the President of the National Authority as specified in the Basic Law, the Executive and administrative powers, shall be the jurisdiction of the Council of Ministers.
That's unambiguous. The cabinet collectively (comparable to the British model of cabinet responsibility) sets policy, except for those areas clearly carved out as subject to the Presidential office and prerogative.
Article (39)
The President is the Commander-in-Chief of the Palestinian Forces.
The term "Forces" is defined as follows:
Article (84)
- Security Forces and the Police are a regular force. It is the armed force in the country, its function is to defend the country, serve people, protect the community and maintain public order, security and morals. It shall perform its duties within the limits prescribed by law, with complete respect to rights and freedoms.
- Security Forces and the Police shall be regulated by law.
There is further language related by implication to the security forces in Article (69), Section 7, detailing the responsibilities of the cabinet, which include:
- The Responsibility to maintain public order and internal security
This gives the Council of Ministers, that is the collective cabinet of the then-acting unity government, the responsibility to maintain order and security. The next Section deals with further developments, indicating a degree of irresolution in the law:
- Discuss suggestions with various entities, which are related to above clause (6 and 7), and their policies with regard to implementation of their jurisdictions.
Given the superseding language of Article (39), as well as the surrounding language (which deals with matters of administration, not the setting of policy) and the clear mandate of Section 8 to "discuss" the policies set by others in terms of implementation, it is very difficult to read this section as giving control, any measure of it, to the cabinet collectively or the Prime Minister specifically. Nor do the rights and responsibilities of the Prime Minister, as spelled out in Article (68), make any mention of the security apparatus. Therefore, in the absence of enabling legislation to the contrary, this section should be read as creating a responsibility in the cabinet to legislate measures related to public order, such as curfews or traffic regulations. This does not create any control in the cabinet.
Therefore, the contention that Hamas was being deprived of a legal right to exercise control over the security apparatus to any extent must be considered false. Quite correctly, the security forces refused to follow several orders from the Hamas cabinet prior to the installation of the unity government.
Let's assume for a moment that all of Hamas claimed grievances were justified. The Basic Law lays out a clear path to judicial remedy. First, it lays out the supremacy of law:
Article (6)
The principle of the rule of law shall be the basis of governing in Palestine. All authorities, powers, agencies, institutions and individuals shall be subject to law.
Assuming that there is a valid constitutional dispute in the question over operational as opposed to ultimate control over the armed forces, there is a mechanism provided in the Basic Law to address any such dispute. It's called the Supreme Court in this country.
Article (103)
- A High Constitutional Court shall be established by law to ensure:
a. The constitutionality of laws, regulations, rules, and others.
b. Interpretation of the Basic Law and legislatione
c. Settle jurisdiction disputes which arise between judicial entities and
administrative entities that have judicial jurisdiction.
In short, questions of competency under the Basic Law can and are to be resolved in a court. There is a tenuous case to be made that armed insurrection is, depending on circumstances and, in the real world, the outcome, defensible. However, at a minimum, other avenues of conflict resolution need to be explored prior to any such act. Hamas did not explore any of them; no court case was ever filed, no injunction ever sought; and this because, as laid out above, Hamas had no right whatsoever to any measure of control over the security forces.
That leads to the question of justification, if that can be addressed without taking into account the constitutional case. Specifically, Hamas' internet apologists refer to what is described as a "Dayton Plan", according to which idea it was actually Fatah that was planning (or rather, preparing to execute) an armed putsch, with assistance from the United States and Israel. Supporting evidence for this is provided, supposedly, by the fact that the United States did arm the Presidential Guard, as well as an interview with a Fatah parliamentarian alleging such a plan.
The problem with this line of defense is simple: the Fatah units in Gaza, supposedly preparing to wring Hamas' neck, were completely defeated in 48 hours. The inescapable conclusion from that is this: if there was indeed such a danger to Hamas, it was vastly exaggerated. In combination with the fact that available legal remedies were simply not pursued, the additional fact that Hamas was receiving extensive funding from Iran, making moot the complaint about alleged U.S. involvement, this quick collapse makes starkly clear that Hamas was not justified in undertaking this coup.
And if Palestinian law itself is not to become and remain a cipher, Hamas must not be allowed to walk away from the consequences of its own criminal behavior. This requires, at a minimum, a maintenance of the embargo of Gaza, the complete isolation of Hamas, and active, generous steps to bolster the legal government. There is a principle in United States law that crime must not pay; it applies here, in spades.
[Update 07.10.07]: Irksomely enough, this diary has now been trolled for several days by an exceptionally vituperative and angry troll. This person is cordially invited to write his own diary instead of spending four days obsessively trolling the efforts of others.